Sidwell v. Wheeler

Birdsong, Presiding Judge. On November 26, 1984, appellant Anna Sidwell, individually and on behalf of her two children, filed a personal injury action against Paul Wheeler arising out of an automobile collision on November 28, 1982. On March 28, 1985, unable to perfect personal service on Wheeler, plaintiff filed a motion for service by publication. Following this, plaintiff caused her insurance carrier, State Farm Mutual Automobile Insurance Company, to be served a duplicate original of the complaint, apparently under the provisions of OCGA § 33-7-11. State Farm avers they were served with process on April 10, 1985. State Farm answered and moved to dismiss Sidwell’s individual complaint as being barred by the two-year statute of limitations of personal injury. OCGA § 9-3-33. Our Supreme Court has held that the statute of limitation that applies to the uninsured motorist applies to the uninsured motorist insurance carrier. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416). The trial court sustained State Farm’s motion and dismissed Sidwell’s individual complaint, but expressly reserved the [733] claims of the minor children. No entry was made as to finality of the judgment as to State Farm. See OCGA § 9-11-54 (b). Decided April 10, 1986. Timothy A. Siler, for appellant. Gary M. Cooper, for appellee. Entry of judgment as to one or more but fewer than all claims or parties is not a final judgment under OCGA § 5-6-34 (a) unless the trial court makes an express entry of final judgment and determination that no just reason for delaying finality of the judgment exists. Culwell v. Lomas &c. Co., 242 Ga. 242 (248 SE2d 641). Hence, where the action remains pending in the court below and no entry of finality of judgment has been made by the trial court, the appeal is premature unless appellant follows the requisites of OCGA § 5-6-35. Ward v. Charles D. Hardwick Co., 149 Ga. App. 546 (254 SE2d 872). There is no certificate for immediate review nor application to this court for permission to appeal. The appeal must be dismissed. Hardy v. Ga. Power Co., 151 Ga. App. 803 (261 SE2d 749). Appeal dismissed. Banke, C. J., and Sognier, J., concur.